Experts discuss consistency of Cutts verdict

Kelli young

Saturday

Feb 23, 2008 at 12:01 AMFeb 23, 2008 at 10:02 PM

An unborn baby could survive five minutes after its mother dies, according to a local doctor and medical research. That window of time may explain why Stark County jurors Feb. 15 convicted Bobby L. Cutts Jr. of aggravated murder in the death of Chloe, a nearly full-term fetus, but opted for the less-serious charge of murder for mother, Jessie M. Davis, legal experts say.

An unborn baby could survive five minutes after its mother dies, according to a local doctor and medical research.

Chance of survival decreases as each minute passes. One unborn baby, however, was delivered 30 minutes after her mother died and lived.

That window of time may explain why Stark County jurors Feb. 15 convicted Bobby L. Cutts Jr. of aggravated murder in the death of Chloe, a nearly full-term fetus, but opted for the less-serious charge of murder for mother, Jessie M. Davis, legal experts say.

Stark County prosecutors say Cutts strangled Davis, who was 36 weeks pregnant, on June 14 and dumped her body in a Summit County park to avoid supporting a fourth child.

Cutts returns to court Monday to begin the sentencing phase of his trial.

Earlier, he testified that Davis’ death was an accident, that his elbow inadvertently struck her throat and that he tried dialing for help on her cell phone but couldn’t turn it on.

Separate lives?

Jean Madden of the Stark County Public Defender’s office believes the verdict is reasonable.

“I don’t see it as inconsistent when you consider they are separate individuals and these deaths happened at separate times,” Madden said. “If evidence shows that one death proceeded the other by some period of time, they could have separate findings for each.”

Summit County Chief Medical Examiner Lisa Kohler testified during the criminal trial that she couldn’t determine when or how baby Chloe or Davis died due to the decomposed state of Davis’ body when it was recovered June 23. Kohler ruled that Davis died due to “unspecified homicidal violence” as opposed to suicide, accident or the result of natural causes.

There was no trauma to Chloe, Kohler said, “When Jessie died, the fetus died.”

Dr. Justin Lavin Jr. of Akron Children’s Hospital, who did not speak specifically to the Davis case and noted that each case is different, said he’s seen healthy babies delivered by a cesarean section performed on mothers who had suffered cardiac arrest and died.

“Usually, if you can get the baby out in five minutes, the prognosis is good,” he said. “It gets worse and worse after that.”

After 10 minutes, he said, an unborn baby’s chances are lowered to “moderately good.”

If the unborn baby suffers any injury or its blood supply is compromised, delivery becomes more complicated and survival rates drop, he said.

In 2003, doctors performed a cesarean section 30 minutes after a woman killed herself during labor by jumping from the fourth-floor window of the labor ward, according to the American Journal of Obstetrics & Gynecology. In January, the journal reported that the baby girl is as doing well and has no apparent neurological problems.

Inconsistent verdict?

Still, Lewis R. Katz, who teaches criminal law and criminal procedure at Case Western Reserve University, believes the theory is “a little stretched.” He believes the verdict, at least on its face, “certainly looks inconsistent.”

“Since the evidence did not point to anything to allow them to find that his purpose in killing the mother was to kill the child, that inconsistency appears right there on the surface,” Katz said.

A third theory could be that the child died as a result of an aggravated burglary, Katz said. “Then they have to analyze the purpose of the burglary.”

Defense attorneys contend that the jury’s verdict is inconsistent, saying the lesser charge of murder for Davis contradicts the aggravated murder conviction for her fetus because both allegations against Cutts were based on the same facts.

They asked for a mistrial shortly after the verdict was read. Stark County Common Pleas Court Judge Charles E. Brown Jr. denied the request.

It will no doubt be a part of Cutts’ appeal.

Jurors, whom the judge as barred from talking publicly, will reconvene Monday to recommend what punishment Cutts should receive. The aggravated murder conviction for Chloe makes Cutts eligible for the death penalty. Or he could get one of three life terms.

No other Ohio resident has been put on Death Row for killing an unborn child, according to the Ohio Public Defender’s office.